Many folks consider that Colin Kaepernick’s kneeling is a form of “Freedom of Speech”. Let’s understand why it isn’t.

First Amendment

The first amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first word is “Congress”. It’s important. I’ll come back to this shortly. Let’s understand that kneeling doesn’t actually fall under this clause for several reasons. First, it’s an act. Freedom of speech covers speech (verbal or written). Kneeling is not speech in any way. The act may represent or be symbolic of some other context or idea, but without that context, it’s just kneeling. Second, by a single person doing it, it doesn’t fall under peaceable assembly. It takes more than one person for it to be considered an “assembly”. Third, it was performed on private property (in football stadiums). Fourth, it was performed while Colin was “on the clock” (meaning, while he was performing his for-pay job).

Congress Shall Make No Law…

That statement means that no federal or state laws can exist that abridge these fundamental rights of the citizens of the US. However, these rights only extend to (and this is the key point) public lands. Private property is not at all subject to any rights afforded by the constitution. Private land owners are not subject to constitutional interference. If you own land, you can deem any person on that land as trespassing and, subject to that determination, deal with the trespasser as you see fit (call the cops, chase them off, etc) no matter what they are doing. The constitution holds no bearing on private property. If you hop a fence and begin kneeling on private property, a land owner is free to chase you off of that land with a rifle under trespassing laws. It’s their land and you were trespassing.

Private property owners, regardless of whether owned an individual or a corporation, is not subject to First Amendment Rights. However, they are subject to the individual laws of the jurisdiction where that land is.

This is the distinction. The First Amendment, and indeed, the constitution as a whole, only applies to government institutions and when on public property. For example, you can go to the steps of a federal building (on public land) and kneel in front for as long as you wish. As long as it remains a peaceful demonstration and you’re not breaking any other laws, you can remain there. Doing this same act during the National Anthem on private property has no place. It not only disrespects the National Anthem, it disrespects the NFL (his employer), the fans and the U.S. alike. It verges on being unpatriotic… probably not the intended affect.

Regardless of what it IS, what it isn’t is “Freedom of Speech”. Not only is there no speech involved, private property owners don’t have to respect “Freedom of Speech” on their property even if it were speech (which it isn’t). Kneeling is an act. As an act, it might be considered a form of protest.

Protests and the First Amendment

Protesting is, contrary to popular belief, not protected by the First Amendment. What is protected by the First Amendment is “Freedom of Speech”, “Freedom of Assembly”, “Freedom of the Press” and “Freedom to Petition”. None of these include “protesting”. Assembly is as close as it comes. Peaceable Assembly might be considered a form of “protesting” by some, but it isn’t always. Some people tend to conflate protesting with assembly when both mean two different things.

When and Where Can You Assemble?

Let’s also understand that “assembly” is intended to be performed on public lands. You can do it on the public sidewalk. You can do it on any public land you choose. As soon as you step foot on private land, you’re subject to trespassing laws.

When Colin Kaepernick chose to kneel during the National Anthem, that act didn’t fall under any portion of the First Amendment. He wasn’t assembling on public land. At first, it wasn’t even an assembly. It takes more than one to assemble.

Kneeling is an act and not subject to “Freedom of Speech” and it has nothing to do with “Freedom of the Press” or “Freedom to Petition”. Kaepernick’s act was simply bad judgement exercised at the worst possible time on private land and on his employer’s dime.

You can’t exercise “Freedom of Speech” when you don’t fundamentally understand what “Freedom of Speech” is. Colin’s actions do have a time and place, but not at an NFL game in a packed stadium on private property. That is not the place for that activity.